Cal-Peculiarities: How California Employment Law is Different 2022 Edition

32 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com from contacting [the workers’ compensation] attorney,” and that the record thus supported an inference that the employer had unreasonably refused to communicate with the employee’s representatives . 33 2.3.2 Expansive definition of serious health condition The California Supreme Court has reversed a summary judgment in favor of a hospital that dismissed a technician for absenting herself under suspicious circumstances and then defying an order to return to work . 34 S he had submitted a physician’s note supporting a 30-day leave for “medical reasons,” which the employer disputed by sending her to a second physician, who opined that she could return to work without restrictions. The employer relied on this second opinion in firing the plaintiff. The technician sued the hospital for firing her without following CFRA procedures, arguing that the hospital’s failure to seek yet a third medical opinion stopped the hospital from challenging her serious health condition. The California Supreme Court made two rulings. First , an employer can challenge an employee’s assertion of a serious health condition without having to use the CFRA’s dispute resolution method of obtaining a binding determination on the employee’s condition from a third, jointly chosen, health care provider. This was a narrow employer victory through a 4-3 vote. Second , by the same narrow margin, the Supreme Court rejected the employer’s argument that the employee’s ability to perform a similar job during her absence conclusively disproved her claim that she had a “serious health condition” that made her “unable to perform the functions of a technician’s position.” Rather, this fact was merely “strong evidence” for the employer to take to the jury. 2.3.3 Expansive construction of requests for CFRA leave The Court of Appeal revived the claim of an employee who had been discharged for excessive absenteeis m. 35 The employee admittedly never requested CFRA leave and the managers who discharged him relied on his habitual absences, without knowing he had been hospitalized. Yet the Court of Appeal reversed the summary judgment against him, holding that he arguably had requested CFRA leave—thereby triggering an employer duty to inquire into his situation—when he submitted a medical form indicating he had been in the hospital . 36 2.3.4 Employer response obligations clarified CFRA regulations provide a deadline for the employer’s response to a request for leav e. 37 An employer need not affirm or deny a request within five business days, but rather must “respond to” a request within that time. It is sufficient, therefore, for an employer to address a request and seek additional information from the employee; the employer need not reach its final decision within the five-day perio d. 38 2.3.5 Leave granted to care for same-sex spouse Same-sex marriages are lawful . 39 A n employee may take CFRA leave to care for a same-sex spouse with a serious health condition. The federal Department of Labor has revised the definition of “spouse” for purposes of taking FMLA leave. Under the FMLA, spouse is defined as “a husband or wife” under state law for purposes of marriage in the state where the employee resides, and includes a spouse in “a same-sex or common law marriage. ” 40 2.3.6 Absence of “honest belief” defense? In a case now depublished, the Court of Appeal held that the “honest belief” defense available to an employer in many discrimination contexts does not apply to a CFRA claim. Rather, an employer denying leave in the belief that the employee is abusing leave must be factually correct in that belief: the employer could not “simply rely on an imprecisely worded and inconsistently applied company policy to terminate an employee on CFRA leave without adequately investigating and developing sufficient facts to establish the employee had actually engaged in misconduct warranting dismissal. ” 41